Sunday 26 May 2019

Libel laws up for review after call for protection of reporters

(Stock photo)
(Stock photo)
Shane Phelan

Shane Phelan

Measures guarding against unfounded defamation claims over court reports are being considered by the State's law reform body.

The move is being looked at as part of a wide-ranging examination of issues relating to defamation and the reporting of court proceedings.

Other issues being examined include whether legal protections that professional journalists have against defamation proceedings should also continue to be enjoyed by unregulated bloggers and so-called citizen journalists.

The commission will also consider whether a new defence of qualified privilege should be allowed in situations where a court reporter makes an honest mistake.

The examination is being conducted by the Law Reform Commission following a request from former Attorney General Máire Whelan, made prior to her appointment as a judge of the Court of Appeal last year.

The commission is today publishing an "issues paper" outlining potential reforms.

Members of the public will have until October 26 to make submissions and a report with recommendations will be sent to the Government for consideration soon afterwards.

Under the Defamation Act 2009, professional journalists, bloggers and citizen journalists enjoy the immunity of absolute privilege provided their report of court proceedings is fair and accurate.

The commission is to examine whether the current interpretation of what is fair and accurate is clear enough.

It is also looking at whether a new defence of qualified privilege should be introduced for court reports which fall short of being fair and accurate.

The commission suggests that in such instances, the privilege could only be defeated by proof there was malice involved.

The commission is also set to consider whether, as a means of guarding against unfounded defamation claims, it would be appropriate to require someone intending to sue over a court report to first get leave from a court before bringing the action and also to demonstrate in affidavits the malice alleged.

Many of the issues now being considered were raised by Ms Whelan in a speech in 2015 in which she called for a review of defamation laws to ensure better protection of court reporters.

During the speech, the then attorney general said court reporters perform an "important public service" and face one of the "most challenging assignments in journalism".

She said she believed reform of the defamation laws was necessary to avoid a "chilling" effect on the level and quality of court reporting.

Journalists, she said, should not have to fear a "simple oversight, omission or error" in reporting court proceedings would expose them to risks of litigation or claims for damages.

Commission member and law professor Donncha O'Connell said: "The essential question is are there excessive restrictions on those who do the regular professional court reporting in terms of the fair and accurate requirement, and can that requirement be made clearer?"

He said there was a broader question regarding the application of standards to professional journalists and citizen journalists. "If you include the latter, is there a need for some oversight in relation to that, because you have to be mindful of standards?" Prof O'Connell said.

The issues paper notes the Danish Press Council has included blogs and certain Twitter accounts as members.

Professor O'Connell said in making any recommendations the commission will have to strike a balance between freedom of expression and the right of a person to their good name.

Irish Independent

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